Distinguishing Statements For Medical Treatment From Those Attributing Criminal Fault

In a sexual abuse prosecution, the victim’s statements made to her treating doctor in which she identified the defendant as her abuser (and the medical record containing the doctor’s detailed notes of what the victim said) were not admissible as statements for the purpose of obtaining medical treatment under FRE 803(4) because the identity of the abuser was not pertinent to the doctor’s diagnosis or treatment of the victim; admission of this identification was not harmless error because it bolstered the victim’s testimony against the defendant and was the sole basis for the defendant’s conviction, in United States v. Bercier, 506 F.3d 625 (8th Cir. Nov. 1, 2007) (No. 06-4125)

In the case, defendant Bercier was charged with sexual abuse of his sister’s foster daughter (Blue) at the victim’s home. The defendant contended the sexual contact was consensual and at trial the victim testified that immediately after the sexual assault, she called her boyfriend (Newcomer) and told him that she had been assaulted. Her boyfriend then drove the victim to the local hospital.

At the hospital, an emergency nurse (Houle) examined her, and a physician (Erdrich) treated her for sexual assault. After the victim’s testimony, and over the defendant’s objection, the boyfriend, nurse and doctor testified as to what the victim told them. The defendant was convicted and appealed contending, among other things, that the evidence from the nurse and doctor was improperly admitted. Bercier, 506 F.3d at 629.

The circuit's conclusion about the nurse's testimony on the victim's statement was admissible as a statement for the purpose of obtaining medical treatment. In contrast, because the victim's statements to the doctor touched on issues not necessary for treatment or diagnosis, these statements were not admissible. FRE 803(4) clears the way for admission of a statement by a declarant, when that statement was made to a physician or medical provider, the declarant made the statement wishing to receive treatment or diagnosis, and the statements made by the declarant are the sort reasonably relied upon in providing treatment or diagnosis. See FRE 803(4).

In applying FRE 803(4) the circuit reasoned that the victim’s statement to the nurse was admissible. At trial, the nurse testified as to what the victim “presented as her major complaint” – the sexual assault by the defendant. The nurse’s account of what the victim stated was “clearly admissible under Rule 803(4)…. So long as the identity of the perpetrator is not disclosed,” concluded the circuit. Bercier, __ F.3d at __ (citing United States v. Gabe, 237 F.3d 954, 957-58 (8th Cir. 2001) (“[A] patient's statement describing how an injury occurred is pertinent to a physician's diagnosis and treatment,” but not the patent’s description of the identity of the person causing the injury.))

In sharp contrast -- and applying the same analysis -- the circuit found the admission of the victim's statement to the treating doctor was not admissible. The circuit noted that the treating doctor’s testimony about her interview with the victim properly set out as a preliminary matter that the doctor was “trained to perform and did perform, not only diagnosis and treatment of patient Blue, but also evidence-gathering tasks relevant to any criminal prosecution that might occur.” During this interview, the doctor testified, the victim identified the defendant as her abuser and that the doctor had made a medical record containing the doctor’s detailed notes of what the victim said.

Admission of these statements not related to diagnosis or treatment violated FRE 803(4). The rule requires that the victim's statement in fact be necessary for the medical personnel to provide treatment or diagnosis. The doctor's account of the victim's statement was not admissible as statements for the purpose of obtaining medical treatment - at least the part of the victim's statement dealing with the identity of the abuser. It was not pertinent to the doctor’s diagnosis or treatment of the victim. As explained by the circuit:

Statements made by a patient seeking medical diagnosis or treatment are excluded from the hearsay rule because “a statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility.” Therefore, for a statement to be admissible under Rule 803(4), “the declarant's motive in making the statement must be consistent with the purposes of promoting treatment; and ... the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis.”

“Statements to a medical professional concerning the cause of an injury- ‘I was assaulted’ -are usually admissible under Rule 803(4). But statements identifying the assailant are ‘seldom, if ever,’ sufficiently related to diagnosis or treatment to be admissible. Such statements may be admissible if the identity of the abuser is relevant to treating the victim's emotional or psychological injuries. But the government must demonstrate that (i) the physician made clear to the victim that inquiry into the abuser's identity was essential to diagnosis and treatment, and (ii) ‘the victim manifest[ed] such an understanding.’”
Bercier, 506 F.3d at 631-32 (quoting United States v. Renville, 779 F.2d 430, 436, 438 (8th Cir. 1985))

Because the prosecution failed to show either (i) or (ii) of the foundation for admitting the statement as to the identity of the assailant, admitting the evidence was erroneous.

In Bercier, the circuit distinguished between statements that dealt with diagnosis or treatment and those related to criminal investigation. Simply because a statement has some bearing on diagnosis or treatment does not provide an entry for parts of the declarant’s statements that do not deal with diagnosis or treatment. The circuit's analysis of this point occupied a major part of its analysis:

Here, the government did not offer Dr. Erdrich's testimony and hospital notes under Rule 803(4), so there was no foundation establishing that Dr. Erdrich told Blue that the lengthy interview inquiring into the identity of the assailant and the details of what happened were essential to her diagnosis and treatment. Nor was there evidence Blue manifested such an understanding. Moreover, while some statements by Blue to Dr. Erdrich were clearly relevant to diagnosis and treatment, Dr. Erdrich's testimony and, to an even greater extent, her notes in the Ambulatory Encounter Record related statements having no evident relationship to diagnosis and treatment, strongly suggesting that the purposes of the interview went far beyond Dr. Erdrich's role as a treating physician. The presence of law enforcement officers at the hospital questioning Blue near the time of Dr. Erdrich's interview reinforce that inference. We discern no relationship between diagnosis and treatment and Blue's detailed description of the encounter to Dr. Erdrich. The physician's testimony relating that hearsay simply bolstered Blue's earlier account of the same events. Finally, the government offered no evidence establishing that the identity of Blue's assailant was pertinent to Dr. Erdrich's diagnosis and treatment. For these reasons, much of Dr. Erdrich's testimony and notes relating what Blue said in the interview were not admissible under Rule 803(4). As this evidence did not fall within another hearsay exception, the district court abused its discretion by admitting it. Fed.R.Evid. 802.
Bercier, 506 F.3d at 631-32 (footnote omitted).

The trial court's error in admitting the doctor's testimony about the victim's statements was not harmless. As the doctor’s testimony touched on the victim's identification of the defendant as her assailant, this was not harmless error because it bolstered the victim’s testimony against the defendant and was the sole basis for the defendant’s conviction. In particular, the circuit noted that the victim’s testimony “buttressed by her prior consistent out-of-court statements to Newcomer and Houle, was the sole basis for conviction” and that her testimony that the defendant’s sexual acts were nonconsensual “was uncorroborated by physical evidence or witnesses to the alleged abuse.” Bercier, 506 F.3d at 633.

In addition, the defendant presented testimony that, “if believed, contradicted Blue's account of the events leading up to the alleged assault, and he directly challenged Blue's testimony that the sexual acts were non-consensual.” The circuit found that the “determinative factors for us in this case are, first, that the prosecution turned on the credibility of [victim] Blue and [defendant] Bercier, and second, that the hearsay testimony and notes of Dr. Erdrich, a neutral health professional, confirmed Blue's description of the alleged sexual assault and events leading up to the assault, and added Blue's prejudicial accusations that Bercier had a history of violence and substance abuse. Much of this hearsay had no medical significance and was contradicted by Bercier.” Bercier, 506 F.3d at 633.

The circuit noted that:

“ The only purpose in having Dr. Erdrich testify to the non-medical information gathered during her interview,” concluded the circuit, was to get in evidence “when she was acting as a de facto criminal investigator as well as a health professional” and which served “to bolster Blue's trial testimony. In a case that turned entirely on the credibility of Blue, this tipped the scales unfairly. We cannot conclude that such an error was harmless. Bercier is entitled to a new trial.” Bercier, 506 F.3d at 633.

FRE 803(4) was amended in 2000 to clarify some “divergence” between what the rule provided and how some courts seemed to be applying it. In particular, the ACN noted: “The exception does not, by its terms, provide a hearsay exception for statements attributing fault. The Committee Note states that statements of fault ‘would not ordinarily qualify’ under the exception, and distinguishes the statement ‘I was hit by a car’ (admissible when made to medical personnel) from the statement ‘I was hit by a car that ran a red light’ (inadmissible). Yet in at least some classes of cases, statements attributing fault, when made to medical personnel, are admitted by the courts under Rule 803(4). The most common example is a statement from a child victim of sexual abuse specifically identifying the abuser.” Capra, Case Law Divergence From The Federal Rules Of Evidence, 197 F.R.D. 531, 539 (2000)

Federal Rules of Evidence